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Wednesday, 5 November 2014

A few days ago The IPKat reported that Spain has now adopted the final text of a law that will enter into force
on 1 January 2015, and significantly reform its IP law system. In the guest
contribution below Katfriends Elena
Molina and Sergio
Miralles (Intangibles
Legal S.L.P) explain in detail what this reform means for online
piracy, news aggregators, the private copying exception, collective rights management, and a bit of EU directive implementation.

Here's what Elena
and Sergio write:

"On 30 October 2014
the Spanish Parliament passed the proposal for the reform of Royal Legislative
Decree No. 1/1996, of 12 April, approving the Restated Text of the
Copyright Act (the “Reform”). The most relevant amendments introduced are
briefly described below.

Sergio Miralles

Tackling online
piracy

First of all, the Reform
enhances the legal tools for fighting against online piracy through the Sección
Segunda de la Comisión de Propiedad Intelectual (the “Commission”). This is a Spanish administrative
body ascribed to the Spanish Ministry of Culture which is in charge of adopting
the appropriate measures to safeguard IP rights over the internet. In any
event, before the Commission starts infringement proceedings, the right holder
must send a cease and desist letter to the alleged infringer clearly
identifying the specific content that should be removed as well as its
location.

Under the Reform, to
qualify as an infringement, the alleged infringer must: i) intentionally induce
the unlawful conduct; ii) cooperate, being fully aware or having enough
evidence that the offending conduct is taking place or; iii) where having a
direct economic interest on the unlawful conducts’ outcome, have the ability to
control that conduct.

Are lists of infringing links this cute?

Pursuant to Article 12 of
the Ecommerce Directive, service providers that carry
out mere technical intermediation activities are excluded from any liability.
However, the Commission may initiate proceedings against those individuals or
entities providing indexed lists of links to unlawful contents, regardless of
whether these links have been provided by a third party or not. Apparently,
this provision may force information service providers to cope with the risk of
their users providing themselves links to unlawful content. Before commencing
proceedings against a services provider, the Commission will take into account
new criteria, such as the number of alleged infringing works accessible through
the allegedly infringing service as well as the number of users in Spain.

The applicable penalties
should the Commissions’ order to remove the allegedly unlawful content were
disregarded are the following: i) fines up to EUR 600.000; ii) interruption of
infringing services up to one year; iii) order directed to the internet service
provider to block internet access; iv) ceasing order directed to the payment
and/or advertising service provider, if any; v) cancellation of the gTLD “.es”
used by the alleged infringer up to six months and/or; vi) ceasing order
directed to funding sources, where applicable. In any event, the Commission
will need a judicial authorisation to execute such cessation measures.

News
aggregators

Secondly, the Reform
establishes a new right consisting of an equitable remuneration to be paid by
news aggregators to publishers or other right holders. This right will arise
any time a news aggregator service uses non-insignificant pieces of information,
opinion or entertainment previously published in a newspaper or a website
periodically updated. Images are excluded as well as search engine services
when using isolated pieces of information necessary to provide results to a
specific search, provided that such services lack commercial purpose and a link
is provided by the search engine to the website hosting the original content.

Private copying

Third, the Reform limits
the scope of the private copying exception [those numerous private copying enthusiasts
will promptly recall that the Spanish Supreme Court has recently referred a number of questions to the Court
of Justice of the European Union regarding the interpretation of this exception
under Article 5(2)(b) of the InfoSoc Directive]. Specifically,
it excludes all reproductions made for professional or business uses as well as
all those made from works not obtained by means of legal purchase or public
communication. However, it does not change the current compensation system, in
force since 1 January 2012. Under the current system, the compensation is
calculated annually and charged to the State Budget on the basis of the
expected damages inflicted to the right holders as a result of the private
copying use. In any event, the Reform keeps silent about the specific criteria
to determine the exact amount to be paid by the State.

Collective rights management

The implied clause in most transposition provisions of EU directives

Fourth, the Reform subjects
the activity of collecting societies to more administrative controls with the
aim to improve their transparency and efficiency and introduces a centralised
payment system to redistribute the income amongst the authors.

Orphan works
and term of protection

Lastly, the Reform
incorporates into Spanish law Directive 2012/28/EU on certain permitted
uses of orphan works and [with a slight delay, since
the deadline for national transpositions was 1 November 2013]Directive 2011/77/EU, amending Directive 2006/116/EC on the term of
protection of copyright and certain related rights, which extends the term of
protection for phonograms from 50 to 70 years.”

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